Self-Criticism from an Israeli, American, and Orthodox Jewish Perspective

Saturday, April 2, 2011

Judge Goldstone's Washington Post Op-ed

It is the unfortunate fate of Judge Richard Goldstone to be condemned and praised for what he doesn’t write.The responses to his op-ed in Washington Post from the Israel advocates are laughable.Even a superficial reading of the op-ed shows that he has not retracted a single comma in the Goldstone Report, nor does he express any regret for having written the report the way it was written. He simply says that had he known then what he knows now, the report would have been different.

In fact, he has been saying for over a year that had Israel cooperated with the Mission instead of boycotting it, the report would have looked different. In the op-ed he gives good marks to some of the IDF investigations, though he does not say that he finds the investigation entirely adequate (more on that below.) Some cases of killing civilians which looked prima facie intentional have now been explained to his satisfaction. Yet he refers approvingly to the UN final report which does not find that investigation adequate. He says that the IDF has investigated better than has Hamas, and gives good marks to the IDF and PA (but failing marks to Hamas) for implementing new policies. Although he doesn’t say it – perhaps he is modest -- the IDF investigations would probably not have occurred without the Goldstone Report.

For a careful reading of the WaPo op-ed, see this piece of Yaniv Reich here. I thank Yaniv for saving me the time, and I thank Hashem for commanding us Jews to observe the Sabbath. Had I read Judge Goldstone’s op-ed when it was posted, I would have spent hours writing on it.

Reich refers to the tone and the timing of the WaPo op-ed. The tone of the original report seemed to me to be an angry one. Israel’s decision not to cooperate with the Goldstone mission cost it in two ways: first, its side of the story was not heard, and, second, its refusal to deal civilly with the mission had an impact on the tone of the final report. It certainly had an impact on the tone of some of the interviews that Judge Goldstone gave. The nasty blowback that Judge Goldstone received also may have affected some of the tone, not of the report, but of some of his statements; he is human.

But in speaking before various audiences the tone has always been a bit different. There was criticism of Israel, but there was always the emphasis that the findings were not judiciary and that the report called for investigations. Judge Goldstone constantly affirmed his fundamental support of Israel, and he seems to have found it difficult to understand why the positiveaspects of the report (e.g., the criticism of Hamas) were being neglected

What is puzzling, then, is why Judge Goldstone has decided to write an op-ed for the Washington Post now that may give the impression that Israel has discharged its obligations with its ongoing, private, IDF investigations. As Reich puts it:

Goldstone’s latest op-ed…does not challenge a single concrete finding in the entire report, and he has not conceded absolutely anything to his critics in that way.In fact, his findings under severe constraints have held up remarkably well with time.But the tone and timing of this current piece suggest that somehow the report should be “reconsidered”, that it was somehow wrong.Moreover, his comments seem to intentionally mislead about the content of the UN independent committee’s findings on due process in Israel.This is nothing more than a bone to Israel’s apologists, which is deeply misleading for all the reasons discussed here.

Reich concludes:

I am afraid this is a sad, integrity-damaging turn for a man who had singlehandedly done so much to protect people from war crimes in Israel, Palestine, and elsewhere.

I cannot agree with Reich here. I would agree with him had Judge Goldstone explicitly back-tracked. I would agree with him had he said that the IDF has discharged its duty.I would agree had Reich given convincing proof of “intentionality,” i.e. that Goldstone intentionally mislead his readers.

But I do think that the op-ed raises questions that could easily be laid to rest were Judge Goldstone to make explicit his views on whether Israel has discharged its obligation. In the original op-ed, he wrote.

Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree.

Is a “significant degree” a “sufficient degree”? According to McGowan Davis, no. According to Judge Goldstone in the Bill Moyers interview, an internal IDF investigation would not be sufficient:

BILL MOYERS: But just this week, the Israeli defense minister said, we don't want any investigations. He says, "There's no need for a committee of inquiry. The Israeli military knows how to examine itself better than anyone else." And he blocked a meeting this week that was going to discuss whether or not Israel should launch an investigation.

RICHARD GOLDSTONE: Well the question is whether he's going to succeed. You know, Ariel Sharon, when he was defense minister, did exactly the same blocking, unsuccessfully, in respect of Sabra and Shatila, and a very appropriate independent investigation was set up under judges and the then attorney general. And of course, they found Sharon guilty, and forced his dismissal as defense minister. So there's precedent both for the minister blocking it, and for his losing, and I hope that will happen here.

Well, it did not happen here. And it is surprising, and puzzling, that Judge Goldstone did not repeat his call for an independent inquiry in his op-ed.But until he explicitly says that there is no further need for one, then the statement above should represent his final word.

16 comments:

It should, but obviously it won't. I think the whole Goldstone report exercise has been damaging, a useful distraction for those who want to stonewall, offering convenient evidence that Israel is ever alone, unfairly besmirched, the victim of eternal prejudice etc., while also giving fodder to those who do simply want to demonize Israel.

Concentrating on the cleanliness of the war fighting, the purity of arms and intentions, all this umpiring and scorekeeping (however valid), manages to shift focus from the main issue -- actually resolving the conflict, which would make further war fighting, kosher or treyf, unnecessary. On the left and right there now seems to be an assumption that the fighting will never end and the pressing issue is correctly assessing grievances. I don't blame Goldstone personally; I admire him and I think he carried out the job with integrity. But I don't think the report has helped the cause.

evets,I fundamentally disagree with your point. You say that the you don't think the report has helped the cause. If you mean by the cause "resolving the conflict" then you are correct. But for many of us, the efforts to end the conflict are themselves the distraction -- just as the Oslo Peace process was a distraction, just as the Road Map was a distraction -- because they provided cover for an intolerable and inequitable situation.

I think you're giving Goldstone too much credit--he folded and the Israel can do no wrong crowd are justifiably gleeful about it. He specifically said that Hamas deliberately targeted civilians and Israel didn't. That's a PR victory for Israel and it doesn't matter that Goldstone doesn't really back up his claims. The mere fact that the notorious Goldstone now says he would have written that differently "shows" that Israel wasn't guilty of war crimes as a matter of policy. That is how his column is interpreted and he's a smart enough man to know that would be the case.

A PR victory for Israel? Over whom, pray tell? The hasbaraniks are gloating now; when they find out that Goldstone won't play their game and recant, they will be angry as hell. The New York Times has always been run by liberal Zionists who swallow anything. I agree with you that this looks bad, but I assure you that everything I wrote has the heksher of the author of the report.

Judge Goldstone doesn't need to "play", because he already gave what they wanted - he admitted that his own work is based on fundamentally flawed system.

Here are my interpretations of each paragraph of the op-ed:

1. He admits that the fact-finding mission didn't have all the "facts" when it produced its report.

2. Recognizes the extensive investigations Israel has conducted.

3. He bashes Hamas.

4. Recognizes Israel's own investigations were based on more evidence than the one his mission was able to gather.

5. This is where he actually discusses the details. While voicing one reservation about Israel's investigation on this specific case, he ultimately expresses satisfaction with Israel's efforts. He even sympathizes with Israeli commanders.

6. He states that Israel would have benefited if the investigations were more public, and that his mission's report would have much more favorable to Israel if Israel shared information.

7. He claims that Israel's investigation of the number of civilians killed were more accurate than his missions' because of Hamas' relatively recent claims on the number of their own dead.

8. He was never comfortable with the original mandate. He bashes the UN.

9. His main recommendation was to have the parties investigate themselves (which Israel did, and Hamas didn't).

10. He had unrealistic hopes. His mission didn't ultimately serve the parties because it didn't curtail Hamas and Israel from conducting in their usual matter. He bashes the UNHRC.

11. Bashes the UNHRC and Hamas again.

12. Argues that the act of international investigations can do some good. Bashes Hamas again while hardly criticizing Israel.

13. Basically the same thing as no.12.

Compare this op-ed with the mission's report - how much negative focus is on Israel compared to Hamas?

Jerry, are we reading the same op ed? The hasbara crowd is almost entirely justified in crowing about this piece. I certainly don't agree with Michael W's likely point of view regarding Israeli brutality in Gaza, but his summary of the op ed seems pretty accurate to me.

1. His "admission" is itself part of the original Goldstone report. Nobody would deny that we know more now, after investigations by Israel and by human rights groups, then when the report was written. That is trivial.

2. You obviously didn't read this paragraph. You omitted his reference to the final report of the HR Council, which states:

Therefore, the Committee remains of the view that an independent commission -- and not the MAG's office -- is the appropriate mechanism for carrying out an independent and impartial analysis, as called for in the FFM report, into allegations that high-level decision-making related to the Gaza conflict violated international law."

In other word,s the IDF cannot investigate the higher echelons. Ergo, an independent public commission must.

And that is Judge Goldstone;s position as of 2 pm, today.

3. You skipped the first sentence, which has aroused the ire of the rightwinger.s

4. This is the beauty of Goldstone's response...read carefully He doesn't say that there is no evidence of higher up planning to intentionally target civilians He says that the IDF investigations were deemed sufficient for the HRC final report to show that these cases did not provide evidence of willful intent. Again, look at the HRC final report, which Goldstone approves of.

5. The Somouni case is still pending, but the IDF investigation's finding is accepted as plausible by the HRC's final report by Goldstone. Remember that when Goldstone appeared at Yale last year, he was challenged by the Chabad rabbi, "How will you feel, if subsequent investigation proves your original finding wrong?" Goldstone answered, to his surprise, "I will be very happy."

7. Again, you miss the point. He suggest that Hamas; numbers are inflated. So in effect he casts doubts on Israel's numbers.

8. He has repeated this claim ad nauseum since the beginning. Israel never bought it. Glad to see that you do.

9. Read the end of my blog post, then read the McGowan Davis report, to which you are referred. After doing so, you will not be able to write what you did. Israel has investigated more than Hamas. Whoopee. You fell right into the trap.

You miss the criticisms of Israel for not cooperating; you miss the criticism of Israel which denies that International Human Rights law applies in assymmetric conflicts.

But finally -- you are absolutely right that Israel comes off much better than Hamas -- but this is the point that Goldstone has been making from the get-go, the point that was dismissed by Israel, which has never taken seriously the Goldstone Report's criticism of Hamas

I've been trying to write a response for about an hour but I can't without engaging in a pointless debate so I'll try to keep my statement short.

The Israeli government wanted a few things:1. Admission that the Mission was flawed because it lacked critical information.2. That a part of the conclusion on Israel's conduct was wrong because it was based on insufficient information.3. That Israel is accountable and did sufficiently so on its own.

I believe Goldstone gave all of that no matter how many reservations he may have voiced either in the op-ed or in the report. If this op-ed is the last draft of history, people would wonder why the UN spent so many resources on such a pointless Mission?

Of the three things Israel wanted (in your list), it received none. There is no admission in the op-ed that the Goldstone Report was "flawed", nor is there any blanket admission that the IDF investigations are sufficient. With all due respect, you are simply reading into the op-ed what is not there. Or to put this another way: Had the Goldstone Report been designed to be a final report, then the admission that it should be, in part, rewritten would be indeed an admission that it was flawed.

But more important, the Goldstone Report contains hundreds of pages that both Goldstone and the HRC have argued is correct and Israel still argues incorrect. Even the issue of intentionality has not been settled -- only whether certain cases can be used as evidence of intentionality. The Dahiya doctrine, the appeal to statements by politicians -- none of this has been investigated and it has not been retracted.

And finally -- Israel's central claim -- that the law of War does or should not apply to assymetric warfare against terrorists -- is resoundingly rejected in the op-ed. Israel's actions will be continued to be examined according to international humanitarian law and the laws of war, even when fighting against Hamas.

Of the three things Israel wanted (in your list), it received, at best, no. 2. There is no admission in the op-ed that the Goldstone Report was "flawed", nor is there any blanket admission that the IDF investigations are sufficient. With all due respect, you are simply reading into the op-ed what is not there. Or to put this another way: Had the Goldstone Report been designed to be a final report, then the admission that it should be, in part, rewritten would be indeed an admission that it was flawed.

But more important, the Goldstone Report contains hundreds of pages that both Goldstone and the HRC have argued is correct and Israel still argues incorrect. Even the issue of intentionality has not been settled -- only whether certain cases can be used as evidence of intentionality. The Dahiya doctrine, the appeal to statements by politicians -- none of this has been investigated and it has not been retracted.

And finally -- Israel's central claim -- that the law of War does or should not apply to assymetric warfare against terrorists -- is resoundingly rejected in the op-ed. Israel's actions will be continued to be examined according to international humanitarian law and the laws of war, even when fighting against Hamas.

Jerry - I think you're cutting Goldstone far too much slack here (as they say in the US). I can see the hedging in his op-ed but the mere fact that he has written such a wishy-washy article in a newspaper apparently without consultation with the colleagues with whom he produced the original report is disturbing.

His claim about the case of the 29 al-Samouni family members being killed possibly of an "erroneous interpretation of a drone image" is absurd given that that could have been offered up as a "possible" cause at the time of the original report with or without Israeli co-operation.

But the original report shows that the family were ordered into the house that they got killed in, that it took 2 weeks to kill all 29 victims and the Israeli army refused access to emergency services for a few days.

Then there are the many cases of blindfolded civilian human shields used by Israel.

And finally, there is the case of the Itamar killings that Goldstone says should be condemned by the Human Rights Council. What's all that about? A terrible crime was committed but under Israel's jurisdiction and no one knows who by or what the motive was. Does he think the HRC should condemn Jack the Ripper? the mafia? Joe the drug dealer? A five year old girl was killed in London by a 14 years old boy recently. Call in the UN? I don't think so.

Jerry, something is seriously wrong with Goldstone. Yes he has hedged. He has also tried to get Israel off of the public hook. People will wonder why, but the what is glaringly obvious, otherwise why did he say anything, especially in the forum that he used?

I think your arguments would be convincing in a court of law (especially with Phil Weiss as presiding judge) but in the messy, half-rational court of public opinion they'll get drowned out.

And btw, when I said I didn't think the report helped 'the cause' I wasn't necessarily talking about the now empty theatro-political peace process. I'm on board for any just resolution, one-state, two-state or universal redemption. I just don't think the report helps bring about any of those. I think it's better for Bibi than it is for biat Hameshiach.

jerry - I left another comment before the one about ticking the update box. Here it is now:

Jerry - I think you're cutting Goldstone far too much slack here (as they say in the US). I can see the hedging in his op-ed but the mere fact that he has written such a wishy-washy article in a newspaper apparently without consultation with the colleagues with whom he produced the original report is disturbing.

His claim about the case of the 29 al-Samouni family members being killed possibly of an "erroneous interpretation of a drone image" is absurd given that that could have been offered up as a "possible" cause at the time of the original report with or without Israeli co-operation.

But the original report shows that the family were ordered into the house that they got killed in, that it took 2 weeks to kill all 29 victims and the Israeli army refused access to emergency services for a few days.

Then there are the many cases of blindfolded civilian human shields used by Israel.

And finally, there is the case of the Itamar killings that Goldstone says should be condemned by the Human Rights Council. What's all that about? A terrible crime was committed but under Israel's jurisdiction and no one knows who by or what the motive was. Does he think the HRC should condemn Jack the Ripper? the mafia? Joe the drug dealer? A five year old girl was killed in London by a 14 years old boy recently. Terrible, but call in the UN? I don't think so.

Jerry, something is seriously wrong with Goldstone. Yes he has hedged. He has also tried to get Israel off of the public hook. People will wonder why, but the what is glaringly obvious, otherwise why did he say anything, especially in the forum that he used?

Great blog. You make important points, but you choose an odd way of making them. You are defending Goldstone because you feel like people our reading into the op-ed more than there is to read, which is fair enough, but then you rely on other things which have gone un-said/unwritten:

"Although he doesn’t say it – perhaps he is modest -- the IDF investigations would probably not have occurred without the Goldstone Report."

But behold - how could you ever come with such a suggestion, as the IDF certainly did not attribute their investigations to Goldstone, and as you point out - he didn't mention it (and so, presumably it doesn't exist). Or alternatively, your discussion of "tone" - tone can be heard, it can also be perceived in writing, but it can never objectively be given over in writing. The point is that you let yourself down. You are trying to argue that Goldstone has not backtracked (fair enough), but you do so by using methods, which you claim the unfair claimants are using - using what isn't written. You are right, he did not write "Mea Culpa, I did it. I was wrong." But he didn't need to.

You are right, the mission was never judicial, but that doesn't stop it being evidence piece 1, 2, 3 - 1000 in the calls being made for War Crimes trials against Israeli generals.

This analysis is great intelectually, but it lacks integrity - a bit like Goldstone himself.

I didn't understand your comment. If the IDF had said, "We undertook our investigation because of the Goldstone report" then my observation would have made no sense.

What you meant to write to me is, "What is the evidence you have for your assertion that the IDF investigation probably would not have occurred without the prodding of the Goldstone report."

I don't have the time to dredge up the newspaper editorials, opeds, columns, in the Hebrew press, which show how sensitive the IDF and the Israeli government was to the Goldstone report; how the IDF insisted that nothing needed to investigated beyond operational investigations, not criminal investigations -- how the IDF changes its version several times, and in some cases investigated the same incidents several time because of the international pressure.

Just look at the posts on the White Phosophorus charge which the IDF investigated only after it was forced to by the international human rights outcry. It went from a position of denying the white phosphorus was used, to disciplining the commanders who ordered its use -- after a stretch of denials, internal investigations, etc.

Bottom line -- without the human rights organizations like B'Tselem, Gisha, Breaking the Silence, etc., whose material was used by the Goldstone mission, the IDF would not have investigated anything beyond certain operational investigations, and investigations instituted by lower level commanding officers.

You may recall that the IDF tried to block all media coverage of the Gaza OP, to the extent of jamming cell phones, etc., and letting in only embedded journalists and spokespeople.

Like in Egypt and around the Arab world, Israel was unable to keep the truth from emerging.